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Ford v. Flournoy

United States District Court, S.D. Georgia, Brunswick Division

October 25, 2017

MARK RAYMOND FORD, Petitioner,
v.
J.V. FLOURNOY, Respondent.

          ORDER AND MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          R. STAN BAKER UNITED STATES MAGISTRATE JUDGE

         Petitioner Mark Raymond Ford (“Ford”), who is currently incarcerated at the Federal Correctional Institution in Jesup, Georgia, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241. (Doc. 1.) Respondent filed a Response. (Doc. 10.) For the reasons which follow, the Court DISMISSES AS MOOT Ford's Motion for Extension of Time to File a Reply, (doc. 11). Additionally, I RECOMMEND that the Court DISMISS Ford's Section 2241 Petition, DIRECT the Clerk of Court to CLOSE this case, and DENY Ford in forma pauperis status on appeal.

         BACKGROUND

         Ford was convicted in the United States District Court for the Middle District of Florida of conspiracy to possess with intent to distribute cocaine base in violation of 21 U.S.C. § 846; two counts of possession with intent to distribute cocaine base and cocaine in violation of 21 U.S.C. § 841 (a)(1)(2); and possession of firearms and ammunition by a convicted felon in violation of 18 U.S.C. § 922(a)(2). (Doc. 10-1, pp. 1, 6.) On September 28, 1999, the Middle District of Florida sentenced Ford to a term of life imprisonment. (Id.) Ford filed a Notice of Appeal to the Court of Appeals for the Eleventh Circuit, (doc. 10-2, p. 28), and the Eleventh Circuit affirmed his conviction and sentence (id. at p. 31.)

         On May 21, 2003, Ford filed an Amended Motion, pursuant to 28 U.S.C. § 2255, in the Middle District of Florida attacking his conviction and sentence. (Id. at pp. 53-56.) The district court denied Ford's Section 2255 Motion, and the Eleventh Circuit subsequently denied Ford's Motion for Certificate of Appealability. (Id. at p. 56.)

         Having been rejected by his sentencing court and the Eleventh Circuit, Ford now turns to this Court to attack his sentence. In the instant Section 2241 Petition, Ford claims that he is being “illegally detained.” (Doc. 1, p. 6.) He contends that the sentencing court's judgment of commitment did not properly specify separate sentences for each count of his conviction and that, therefore, his sentence “is vague and void.” (Id.) Ford also, without cognizable explanation, contends that the Federal Bureau of Prisons (“BOP”) has engaged in rulemaking. (Id. at p. 8.) As relief, Ford asks this Court to order that he be released from detention. (Id. at p. 9.)

         Respondent argues that the Court should dismiss Ford's Petition because he does not satisfy the requirements of the 28 U.S.C. § 2255(e) “saving clause” in light of the Eleventh Circuit's decision in McCarthan v. Dir. of Goodwill Indus.-Suncoast, Inc., 851 F.3d 1076, 1081 (11th Cir. 2017). (Doc. 10.)

         DISCUSSION

         I. Whether Ford can Proceed Pursuant to Section 2241

         Section 2241 habeas corpus petitions “are generally reserved for challenges to the execution of a sentence or the nature of confinement, not the validity of the sentence itself or the fact of confinement.” Vieux v. Warden, 616 Fed.Appx. 891, 896 (11th Cir. 2015) (internal punctuation and citation omitted). Ordinarily, an action in which an individual seeks to collaterally attack “the validity of a federal sentence must be brought under § 2255, ” in the district of conviction. 28 U.S.C. § 2255(a); Turner v. Warden Coleman FCI (Medium), 709 F.3d 1328, 1333 (11th Cir. 2013). To utilize Section 2241 to attack the validity of a federal sentence or conviction, a petitioner must show that the remedy afforded under Section 2255 is “inadequate or ineffective”. Taylor v. Warden, FCI Marianna, 557 Fed.Appx. 911, 913 (11th Cir. 2014); Turner, 709 F.3d at 1333 (noting the petitioner bears the burden of establishing that the remedy under Section 2255 was inadequate or ineffective to test the legality of his detention). A motion to vacate covers only challenges to the validity of a sentence, but the saving clause and a petition for a writ of habeas corpus cover challenges to the execution of a sentence. Cf. Antonelli v. Warden, U.S.P. Atlanta, 542 F.3d 1348, 1351 n.1 (11th Cir. 2008) (“It is well-settled that a § 2255 motion to vacate is a separate and distinct remedy from habeas corpus proper. . . . A prisoner in custody pursuant to a federal court judgment may proceed under § 2241 only when he raises claims outside the scope of § 2255(a), that is, claims concerning execution of his sentence.”) (internal citations omitted)); United States v. Flores, 616 F.2d 840, 842 (5th Cir. 1980) (“[The prisoner's] appropriate remedy is under § 2255, not 28 U.S.C. § 2241, since the alleged errors occurred at or prior to sentencing.”).

An application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention.

28 U.S.C. § 2255(e) (emphasis added). The above-emphasized portion of Section 2255(e) is referred to as the “saving clause.” “Section 2255(e) makes clear that a motion to vacate is the exclusive mechanism for a federal prisoner to seek collateral relief unless he can satisfy” the saving clause. McCarthan v. Dir. of Goodwill Indus.-Suncoast, Inc., 851 F.3d 1076, 1081 (11th Cir. 2017).

         After McCarthan, to determine whether a prisoner satisfies the saving clause, a court need only analyze “whether the motion to vacate is an adequate procedure to test the prisoner's claim.” Id. at 1086. To answer this question, a court should “ask whether the prisoner would have been permitted to bring that claim in a motion to vacate. In other words, a prisoner has a meaningful opportunity to test his claim whenever section 2255 can provide him a remedy.” Id. at 1086-87. In short, when reviewing a Section 2241 petition, courts should look to whether the petitioner's claim is of a kind that is “cognizable” under Section 2255. If so, the petitioner cannot meet the “saving clause” and cannot proceed under Section 2241. To be sure, “[t]he remedy [afforded] by [a Section 2255] motion is not ineffective unless the procedure it provides is incapable of adjudicating the claim.” Id. at 1088. Whether the petitioner could obtain relief under Section 2255 is not relevant to the McCarthan test. Thus, the “remedy” that must be “inadequate or ineffective” to trigger the saving clause is “the available process-not substantive relief.” Id. at 1086.

         “Allowing a prisoner with a claim that is cognizable in a motion to vacate to access the saving clause nullifies the procedural hurdles of section 2255[.]” Id. at 1090. For example, “[t]he mere fact that such a [§ 2255 motion] is procedurally barred by § 2255's statute of limitations or restriction on second or successive motions does not make it inadequate or ineffective.” Id. at 1091 (“A federal prisoner has one year to move to vacate his sentence under section 2255. But when a prisoner uses the saving clause to bring a claim that is cognizable in a motion to vacate, he bypasses his statute of limitations and gains limitless time to press claims that prisoners who meet the requirements of section 2255 do not receive.”); Body v. Taylor, No. 1:15-CV-00311-AKK, 2015 WL 1910328, at *6 (N.D. Ala. Apr. 27, 2015), appeal dismissed, (Oct. 28, 2015) (quoting Wofford, 177 F.3d at 1245 (Cox, J., concurring specially) (“I also agree that the remedy by motion under § 2255 is not rendered ‘inadequate or ineffective' because an individual is procedurally barred from filing a second or successive § 2255 motion.”); United ...


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